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Wednesday, June 25, 2014

Judge James Loken hinted
during oral arguments in January that the federal government's effort to forfeit
the Ka Nefer Nefer mummy mask still might have life even if the Eighth Circuit
Court denied the government’s appeal. But now the federal government's case is truly dead.

Two weeks ago the court of appeals ruled
against federal lawyers, halting their effort to forfeit the mummy mask on procedural
grounds. And now district court Judge Henry Autrey has signed off on the
St. Louis Art Museum’s (SLAM) notice to dismiss the museum’s separate declaratory
judgment action.

Readers will recall that the declaratory judgment case was the initial SLAM
mummy mask case, whereby the museum petitioned to establish exclusive title
to the artifact. Before the U.S. government filed a forfeiture complaint in March 2011, SLAM started its own civil action for declaratory
relief in federal district court, seeking to quiet the title of the 19th Dynasty
Egyptian mask. The museum's February 2011 petition stated that the

Museum respectfully seeks declaratory
relief to declare the respective rights of the parties with regard to the Mask,
specifically that (1) the right of the United States to seek seizure and/or
forfeiture pursuant to the provisions of the Tariff Act of 1930 (“Tariff Act”)
is foreclosed by the applicable statute of limitations set forth in 19 U.S.C. §
1621, and (2) the provisions of Egyptian Law No. 215 [on the Protection of
Antiquities] do not establish the Mask is Egypt's property, nor can the
Defendants establish reasonable cause to believe the Mask was 'stolen,
smuggled, or clandestinely imported or introduced' into the United States
pursuant to 19 U.S.C. § 1595a.

During oral arguments about the forfeiture case, the Eighth Circuit suggested
that the government could still argue the forfeiture claim as a defense in the declaratory
judgment action. But with SLAM’s voluntarily withdrawal of the declaratory judgment
suit last week, federal authorities are now left with no forum to argue their claim that the mask is stolen property that cannot be owned by SLAM.

Federal attorneys told the court of appeals earlier this year, "It was the museum that precipitated a judicial intervention
by filing the declaratory judgment, explaining ""Our
preference was to reach a mediated solution to this dispute ...." But SLAM has now beaten the forfeiture case and,
predictably, the institution has no interest arguing title.

What’s next? Perhaps nothing. Statutes of limitations
may close the door on several legal alternatives. It is difficult to know what federal,
state, legal, mediated, or political options are being discussed at this time,
if any. But if such discussions are taking place, one would expect
that SLAM’s governing structure
is being probed as a possible requisite for action by private parties or
public authorities (e.g., the Missouri attorney general). The museum is funded
by property tax dollars, governed by a politically appointed board, and receives
financial assistance from a supporting nonprofit organization. For now, however, the Ka Nefer Nefer case will stay in the afterlife.

2015 ABA Journal Blawg 100 Honoree

2014 ABA Journal Blawg 100 Honoree

2014 Daniel Webster International Lawyer of the Year award given to Rick St. Hilaire

"Rick St. Hilaire, who has become an authority on cultural heritage law, received the International Law Section’s 2014 Daniel Webster International Lawyer of the Year award at an Oct. 30 reception in Manchester, hosted by Sheehan Phinney Bass + Green." - NH Bar News, November 19, 2014

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Rick St. Hilaire is among those featured in Josh Knelman's book, Hot Art

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